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TMI Blog2019 (11) TMI 1435X X X X Extracts X X X X X X X X Extracts X X X X ..... owed under the Act, does not comes under the reasonable cause as provided under the Act, or as explained by the various courts and hence, we reject the application filed by the assessee for condonation of delay in filing appeal. Reasons given by the assessee, in light of affidavit of the counsel that due to incorrect advice, the appeal could not be filed within the time allowed under the Act cannot be considered as sufficient and reasonable cause for condonation of delay in filing appeal and hence, we reject condonation application filed by the assessee and dismissed appeal of assessee. - ITA No.7115/Mum/2018 - - - Dated:- 29-11-2019 - SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER For the Revenue : Shri. Vodal Raj Singh, CIT, DR For the Assessee : Shri. Vijay Mehta, Advocate ORDER PER G.MANJUNATHA (A.M): This appeal filed by the assessee is directed against, the order of the Principal Commissioner of Income Tax 09, Mumbai, u/s 263 of the I.T.Act, 1961 for the Assessment Year 2013-14. 2. The assessee has raised the following grounds of appeal 1. The order passed by the Id. Pr. CIT u/s. 263 of the Income-tax Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fresh consideration of the issues discussed in this order and hence, no action was required to be taken thereon as we could adjudicate the consequential order, which was to be passed by the Ld. AO. During the consequential assessment proceedings, which are still under way, the assessee felt that the Ld. AO is determined to disallow interest expenditure and to make additions in respect of share application money, on the direction of the PCIT. In view of the apprehension, the assessee had, consulted another counsel on 07/12/2018, where, the counsultant suggested to file appeal against the order of PCIT u/s 263 of the I.T.Act, 1961. It was then that incorrectness of the advice received and the inadvertent lapse in not filing of the appeal against the revision order were realized. Therefore, the assessee had taken steps to file appeal against the order of the PCIT, which resulted in delay of 191 days. He, further submitted that the said delay in filing the appeal was not due to any deliberate lapse or negligence, but due to circumstances beyond our control and hence, the delay in filing appeal may be condoned in the interest of justice and equity. In this regard, he had filed affidavit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds of appeal were finalized and signed on 08.12.2018, me appeal is being filed on the following working day, i.e. on 10.12.2018 itself. 4. We repeal and reiterate that the delay of 191 days in filing the captioned appeal was not due to any deliberate lapse- or negligence on our part but due to circumstances beyond our control Accordingly, we humbly pray that this Hon'ble Tribunal may be pleased to condone the delay and to admit the appeal for adjudication and disposal in the interests of justice and equity. We are enclosing herewith an affidavit of the applicant in support of the statements made in this application, marked as Annexure-A. We are also enclosing herewith another affidavit deposed by shri Nilesh Y.Jagiwala, Chartered Accountant subscribing to the pleadings contained herein, marked as Annexure-B. 5. In this connection, we place reliance upon the following decisions with the relevant findings there from (i) Collector, Land Acquisition v. Mat. Katiji Ors. (167 1TR 471) The Legislature has conferred power to condone delay by enacting section 5 of the Limitation Act, 1963, in order to enable the courts to substantial justice to parties by disposing of ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d an affidavit by one of the partners of the firm of chartered accountants. The Tribunal dismissed the appeal in limine and observed that a chartered accountant could not have given an absurd advice. The affidavit filed by the firm of chartered accountants was rejected. The affidavit filed by the assessee was also rejected on the ground that it gained strength only from the affidavit filed by the firm of chartered accountants. ............................................ Held, allowing the appeals, that none should he deprived of an adjudication on the merits unless the court or the Tribunal or appellate authority found that the litigant had deliberately and intentionally delayed filing of the appeal, that he was careless, negligent and his conductlacked bona fides. Those were the relevant factors. The Tribunal's orders did not meet the requirement set out in Saw. It had misdirected itself and had taken into account factors, tests and considerations which had no nexus to the issues at hand, The Tribunal therefore, had erred in law and on facts in refusing to condone the delay. The explanation placed on affidavit was not contested nor could it have been concluded that the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tative. On seeing the facts of the case, there is force in the contentions of the assessee that there was advice not to contest the order of 263 originally mi advise given by the Chartered Accountant and accordingly they have not preferred the appeal hut it was realised later that assessee should have contested the appeal since substantial justice is required, hence, the appeal was preferred belatedly with a prayer for condonation. Even though the learned Departmental Representative objected and stated that the assessee has accepted the order u/s. 263 and there is no case for condoning the belatedly filed appeal, we fire of the view that the delay in filing the appeal is for good and sufficient reason, hence, the same is to be condoned. The Director has given tin affidavit on record supported by the advice given by the Chartered Accountant originally. The facts of the case dearly falls within the decision of the Hon'ble Madras High Court in the case of Areva T and D India Ltd, v. JCIT 287 ITR 55 (Mad). Relying on principles established by the Hon'ble Supreme Court in the case of Mela Ram Sons vs. CIT reported in 29 ITR 607 and other cases relied upon by the learned Couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of issues considered in revision proceedings, then suddenly stood up and filed appeal with explanation that there was incorrect advise received from the consultant, who handled the matter before the PCIT. The Ld. DR, further submitted that if, you go through the contents of condonation application filed by the assessee, it is self explanatory and self admission by the assessee itself, as per which assessee has admitted the fact that it has taken a conscious decision not to challenge order of the PCIT, but at later stage, when things are goes out of its control, then come out with an explanation that due to inadvertent lapse and wrong advice of a consultant, the appeal was not filed. He, further, submitted that if, you consider the reasons given by the assessee for not filing the appeal within the time specified under the Act, it is very clear that this is the case of not only deliberate lapse, but criminal negligence not occurring out of any circumstances beyond the control of the assessee. Insofar as, affidavit of the concerned counsel that his advise was later found to be inept is a sad commentary, not only on the professional competency of the concerned counsel, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was determined to make additions on the issues discussed by the PCIT in its 263 proceedings then, the assesee has decided to file appeal with explanation that the counsel, who appeared before the PCIT has given incorrect advise. No doubt, in few cases, the courts have held that any incorrect advice given by a professional can be a reasonable cause for condonation of delay in filing the appeal, taking into note of the fact that the assessee, as well as the counsel was under the bona fide mistaken of a fact that there is no need of filing appeal or no action needs to be taken on this aspect. In this case, on perusal of reasons given by the assessee, we find that the assesee has taken a conscious decision not to file appeal, on the pretext of getting favorable results from the AO in consequential assessment proceedings. But, when the AO was determined to make additions on the issues, it has decided to file appeal. Therefore, it cannot be said that the professional advice given by the counsel is incorrect which may be considered as reasonable cause for condoning the delay in filing the appeal. Further, the professional advise given by any consultant can be termed as wrong advise if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fixed period of time. Delay can be condone only in those cases, where there is no gross negligence or deliberate inaction or lack of bona fide from the petitioners. Secondly, the assessee should offer acceptable and cogent reasons to condone delay. The test whether or not cause is sufficient is to see, whether it could have been avoided by the party by the exercise of due care and attention. In this case, on perusal of details filed by the assesse, we find that the assessee could have avoided the situation of not filing appeal, if it acted in a bonafide manner. The assessee on one side claims that it was a conscious decision not to file appeal, because it was under the bonafide belief that no action needs to be taken at this point of time, as the PCIT has set aside appeal for fresh assessment and on the other side, claims that it was decided to file appeal because, the Ld.AO was determined to make additions on the issues subjected to 263 proceedings. From the above, it is abundantly clear that belated filing of appeal is an afterthought, and it struck to the mind of the assessee only after it came to know that it is not getting any favorable result from the Ld.AO. Therefore, when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the advice given by the counsel was not considered to be incorrect, because the assessee has taken conscious decision not to file appeal on the bonafide belief of getting favorable order from AO. Therefore, the case laws relied upon by the assesse is not considered. 8. Coming back to the case laws relied upon the Ld. DR. The Ld. DR has relied upon various judicial precedents, including decision of ITAT, Bangalore bench, in the case of Shri B. Surya Kumar vs ITO (2015) 43 CCH 0193 Bang. Trib. We find that the Tribunal after considering various decisions of courts, including Hon ble Apex Court in the case of Mst Katiji vs Collector of land acquisition (supra) held that the reasons given by the assessee, in light of wrong professional advice given by the counsel cannot be considered as sufficient and reasonable cause for delay condonation of filing appeal. The relevant findings of the Tribunal are as under:- 5.1 We have heard both parties and perused and carefully considered the material on record, including the judicial decisions cited. The Hon'ble Apex Court in the case of Vedabai alias Vaijayanatabai Baburao Patil V Shantaram Baburao Patil Ors (2002) 253 ITR 798 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond the control of the party. In the case on hand, the factual matrix, in our view, clearly establishes that the delay was due to the negligence and inaction on the part of the assessee, which could have been avoided by the assessee if he had exercised due care and attention. Therefore in our opinion, in the factual matrix of this case there exists no sufficient and reasonable cause for the inordinate delay of 515 days in filing the appeals for Assessment Years 2002-03 to 2005-06 by the assessee. In coming to this finding, we draw support from the decisions of the Hon'ble Apex Court in the case of MST Katiji (supra), Vedabai alias Vaijayanatabai Baburao Patil (supra), of the Hon'ble Allahabad High Court in the case of Ganga Sahai Ram Swaroop (supra) and of the ITAT, Chennai Bench (Third Member) in the case of JCIT V Tractors Farm Equipments Ltd. (2007) 104 ITD 149 (Chennai) (TM). The cases cited by the assessee of various courts and of the coordinate benches of this Tribunal (supra), have been duly considered and with due respects we find the factual matrix different therein. We have considered the factual matrix of this case to reach the finding that there existed no suf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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